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thence to run south eighty-two degrees west would intersect the south-east angle of lot No. 10. A plan was put in alleged to have been used by Mr. Bethune in effecting sales, and it is contended that the lot No. 8 was sold according to that plan; but that plan is manifestly erroneous as to lot No. 10-the adjoining lot-and it may be equally so as to the intended boundary of lot No. 8, and cannot with such an error upon the face of it be allowed to controvert or explain the description in the deed. Besides which, there is no reference to any plan, nor is there anything to shew that the purchase was made of the lot as laid down on any plan.

I think therefore that it must be held that both lots extend to the water's edge, and that all the accretion which has taken place in front of them must be taken now to belong to these lots. From circumstances which have appeared on this and other trials of the same kind at Cobourg, the impression seems to have been generally entertained that the beach belonged to the Crown, and was reserved for common and general purposes. It is probably under this idea that the beach was so long allowed to be used by all who desired it without question, no exclusive claim being set up by anybody. There is not, however, anything in the testimony to shew that the owner for the time being of the lots in question could not at any time appropriate the beach in front of his lots and forming part of them to his own use, and enjoy them excluclusively. Though the use was not denied to any one, there was no surrender or abandonment of the right which could operate in the slightest degree against a recovery at any time. RICHARDS, J., Concurred.

Rule absolute.

A DIGEST

OF

ALL THE CASES REPORTED IN THIS VOLUME,

DECIDED IN THE

COURT OF COMMON PLEAS.

ACCEPTANCE.

See DELIVERY.

ACCRETION.

This was an action of ejectment brought by the plaintiff against the defendants for the recovery of portion of ground, known as lot No. 17 broken front concession B of the township of Hamilton, now in the town of Cobourg, adjoining lake Ontario.

The question was, whether the owner of the land described as adjoining the lake and extending to the bank had shewn a good title to the new soil which had thus attached itself to the bank of the lake. Held, that as the owner of the bank would, by the encroachment of the lake, be the loser (the owner of the shore, consisting of the part between high and low watermark, always being able to claim the shore whether it shifted or not), so he should be entitled to the benefit of the The defence was limited to a extension of the bank seawards, upon small portion bordering on the lake, the principle that whoever would which had been formed by the waves sustain the injury should also be washing up sand, gravel and alluvial entitled to the benefit. McLean, J., deposit, and thereby extending the dissentiente. Throop v. The Cobourg bank inwards upon the lake. The and Peterboro' Railway Company, deeds under which plaintiff claimed 509. title conveyed "to the bank of lake Ontario, thence along the said bank the several courses thereof." It ap peared in evidence that so much alluvial deposit had been washed upon the shore, and even upon the bank of the lake, that all traces of the former bank were now obliterated, and could only be discovered by digging through the surface or new soil.

AGREEMENT.

Construction of]-1. A. by agreement in writing, sealed, &c., in consideration of the rents, covenants and agreements on the part of B., to be paid, done and performed, did contract and agree with the said B. that he should and would on or before the 1st day of

APPEARANCE.

See ATTORNEY.

APPORTIONMENT.

See ANNUITY.

APPRENTICESHIP.

Contracts of apprenticeship for a less term than seven years, entered into before the passing of the statute 14 & 15 Vic. ch. 11 are not void, but voidable only. Webster v. McBride, 109.

APPROPRIATION.

See DELIVERY AND ACCEPTANCE.

October, upon request made to him in writing under the hand of B., grant and execute unto him a good and effectual lease, to be prepared or approved by the counsel of B. of all, &c., to hold for five years at, &c.; the said lease and counterpart thereof to contain certain covenants; and said A. thereby agreed to deliver to the said B. on the 1st of October staves, &c., at the above premises, at, &c., per thousand, for which said B. agreed to pay said A. therefor at, &c., and it was thereby agreed that there should be inserted in said lease a covenant on the part of the said A. that he would deliver to the said B. in each of the two succeeding years staves, &c.; and it was further agreed that B. should furnish securities for the due performance of the above agreement on or before the 20th day of July. Held, that a request in writing under the hand of B. for such lease, or the granting of such lease by A., is not a condition precedent to the right of B. to have the staves delivered at the time and place mentioned in the agreement, the co-ant to manage, cultivate and improve venants to grant the lease and to deliver the staves being separate and independent. Leonard v. Wall, 1. Effect of, when not produced.]—2. A written memorandum, under which plaintiff claims certain goods, not being produced at the trial, cannot in its absence be regarded as importing more in the plaintiff's favor than his own witnesses represent. Canniff v. Bogart, 341.

ANNUITY.

Apportionment of.]-An annuity, payable annually during the annuitant's life cannot be apportioned so that the annuitant's administrator can receive a proportion of such annuity, the annuitant having died within the currency of the year. Ausman Admor v. Montgomery, 364.

ASSAULT AND BATTERY.
See TRESPASS.

ASSUMPSIT.

By agreement under seal the plaintiff in this case agreed with the defend

the defendant's farm for one year, and do whatever work defendant should require during that period, in consideration of the sum of £95, payable at the expiration of the said term, plaintiff to have the use of the house on said farm during the term, pasture for two cows, and half an acre of land for a garden. The plaintiff served the defendant until within three weeks of the end of the term: then left the farm at the defendant's request, and upon defendant's promise if he would do so to pay or settle with him: defendant afterwards objected, and plaintiff sued in an action of assumpsit for work and labor generally. Defendant obtained a verdict. Held, that the plaintiff could not declare in assumpsit for work and labor generally, because the work was performed under a sealed contract. Parnell v. Martin, 473.

ATTORNEY.

Where a plaintiff, without serving a defendant, accepts the appearance of an unauthorised attorney, the court will set aside the proceedings as irregular, although it is not shewn that the attorney is insolvent. Massey v. Rapelje, 134.

BAIL.

565

the plaintiff each and every of ten promissory notes on the respective days on which the same became due and payable, according to the tenor and effect of the said promissory notes respectively; then, if defendant and said W., or either of them, should well and truly, absolutely and at all events pay or cause to be paid unto the plaintiff each and every of the said ten promissory notes on the Liability of.]-1. Defendants respective days on which the same being bail of H. to the limits of the became payable, then, &c.; otherwise, gaol of the then united counties of &c., assigning breaches as to the last York, Ontario and Peel, the county six notes. Plea, that Shaw did not of Ontario, in which the debtor H. pay the first and second of the said resided, being separated by procla- ten notes when the same became due mation from the other two counties and payable according to the tenor after the recognizance was entered and effect thereof, and that thereupon into, and he having continued to the bond became forfeited; and that reside in the county of Ontario after afterwards and while the said notes its separation from the other two. remained due and unpaid-to wit, In an action of debt on the recogni- on, &c.-said Shaw became bankzance-Held, that defendants were rupt; and that afterwards, and while liable as for a breach of the re- the said notes remained due and cognizance that the limits of the unpaid, and after the said writing gaol of the united counties of York, obligatory had become forfeited, the Ontario and Peel mean the limits for defendant became bankrupt; and that the time being, and that when Ontario said debt accrued due and was pay. was separated they became the limits able before the defendant became of the gaol of the two remaining coun- bankrupt. Held, that the bond being Gies. Ross et al. v. Farewell et al, 29. forfeited before the defendant's bankStatute for relief of.]-2. Under ruptcy, therefore the penalty became the fifth section of the 18 Vic. ch. 69 a debt which the plaintiff might have defendants, in actions on bail bonds, applied to have retained in the hands where the breach has arisen by the of the defendant's assignee till the separation of counties by the legisla- contingency happened, and then have ture, are entitled to have all proceed-proved; and that the defendant was ings stayed upon payment of the discharged, and the plea consequently plaintiff's costs as between attorney good. Perrin v. Hamilton, 57. and client. Ross et al. v. Farewell, 101.

BANKRUPTCY COMMISSION. Debts proveable under.]-Debt on bond made by defendant and one W. as sureties for one Shaw conditioned that if said Shaw should not from time to time, &c., well and truly pay unto

BILLS OF EXCHANGE.

Where a bill of exchange is drawn in Upper Canada, addressed to a person residing in Upper Canada and payable in England, ten per cent. upon the amount of such bill can be collected under the statute 13 Vic.

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2. The defendants, as a municipal corporation deriving their power under the statute 12 Vic. ch. 81, having by resolution authorised the raising and levelling of a street within their juris. diction, which when done injuriously affected the plaintiff's property Held, that a by-law should have been passed to sanction the act complained of. Croft v. The Town Council of Peterboro', 141.

3. If a by-law be not void on the face of it without being quashed, all proceedings duly had under it while it remained in force may be justified under it. Barclay v. The Munici. pality of Darlington, 432.

CARRIER.

Liability of.]-Fifty barrels of oysters having been shipped at Oswego Junius," and the vessel having been for Toronto per defendant's vessel the obliged by stress of weather to go to Kingston, from which latter port the goods were transhipped for Toronto, they arrived in a damaged conditionper the steamer "Oshawa," where carrier throughout; that is, from OsHeld, that the defendant was the wego to Toronto via Kingston. McConkey v. Gorrie, 430.

COGNOVIT.

Impeachment of.]-In an action on the case to set aside a security under which plaintiff claims, or a portion of the sum confessed, the plaintiff in the confession may shew in support of it the circumstances that constituted the consideration for the acknowledgment, and that such confession was to operate as a continuing security, to cover futu Mayer, 377. as well as past advances. Douglas v.

COLLATERAL SECURITY.

To a declaration containing five counts on five different bills of exchange defendant pleaded that, after the bill in the first count mentioned became payable, and while those in the other counts were running, it was agreed that the defendant should execute a mortgage of certain lands to secure payment of all the bills of exchange in the declaration mentioned, and that twelve months from the date of the said indenture should be given to the defendant for payment of the

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